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New Mexico Law Review




Should college athletes be compensated for their play and if so, how? The first question has been a debate for some time now. But the second question—the “how”—not so much. This writing addresses both questions in depth. With the Ed O’Bannon case that was decided back in August of 2014 and the palaver the Northwestern football team raised in their efforts to unionize, it is acknowledged that the discussions on this issue may have reached its crescendo years ago. That is until now. On September 27, 2019, Gavin Newsom, the Governor of California, signed into law Senate Bill 206. Senate Bill 206 is a law that will allow athletes who compete in collegiate sports for California colleges and universities to profit off of their name, image or likeness; a practice that is currently prohibited under NCAA rules. The law is scheduled to go into effect January 1, 2023.

California’s passing of S.B. 206 has set off a chain reaction. As of May 25, 2020 over 34 states have drafted their own Pay for Play provisions. California’s initiative with a large majority of states following suit has forced the NCAA to do something it has resisted doing for more than 60 years. On April 29, 2020 the NCAA’s Board of Governors announced it is moving forward with a plan that would allow college athletes to earn money for endorsements and a host of other activities involving personal appearances and social media content. The NCAA’s Pay for Play version is scheduled to go into effect in the fall of 2021. A quick review of some of the groundwork the NCAA is laying on this issue reveals that the NCAA will be attempting to reign in and place tighter restrictions on what the athletes can do by way of endorsement and promotions than the more general provisions found in the respective state Pay for Play provisions.

For example, the NCAA’s Pay for Play provision will more than likely prohibit her athletes from using their respective universities’ names and school logos in any of the athlete’s endorsements or promotions thus severely limiting the athletes’ ability to use their name, image, or likeness optimally. By contrast, S.B. 206 does not contain such restrictions. Thus the stage has been set for some wrangling that will occur between the NCAA, and the respective states. Dynamics that spark a host of interesting issues for analysis and exploration for another day.

But key for the task at hand is the fact that none of these Pay for Play provisions address the prohibition against the universities themselves compensating the college athlete. Those prohibitions are still in place and the NCAA has given every indication that it intends to do everything it can to keep it that way.

Accordingly, this writing focuses on the step yet to be taken. The Universities themselves compensating the college athlete. That act would be far more significant as university compensation would reach a larger portion of Division I athletes and not just the highly marketable superstars that pepper the top echelon Division I programs. This writing makes the clear case for universities’ compensating their athletes.

This writing stands alone in that it also shows the viability of compensating the college athlete by setting the analysis within the context of an NCAA Division I program; namely the University of Michigan. This article proposes with specificity how compensating the college athlete can be done without disrupting existing athletic programs. Popular refrains of athletic program poverty and having to shut down other sports programs are addressed and summarily debunked. The time has come to recognize that these athletes are university employees and are an integral part of the revenue generating component that earns millions for their respective universities. It’s time that these athletes be compensated fairly and appropriately for their efforts. This piece makes the clear case for it and quantifies it by the numbers.

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University of New Mexico School of Law

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